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Mega Edition: Bryan Kohberger's Motion To Preclude Capital Punishment (9/15/26) · Beyond The Horizon

• 0:00
  Speaker 1: What's up, everyone, and welcome to another episode of Moscow
• 0:03
  Speaker 1: Murders and More. In this episode, we're going to take
• 0:07
  Speaker 1: a look at the defendant's motion, Brian Kohlberger's motion, to
• 0:11
  Speaker 1: preclude the death penalty and adopt other necessary procedures due
• 0:15
  Speaker 1: to the state's numerous disclosure violations. Case number CR01-24-31665. State
• 0:21
  Speaker 1: of Idaho. Plaintiff. First, Brian C. Kohlberger. the defendant. Comes now,
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  Speaker 1: Brian C. Kohlberger by and through his attorneys of record,
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  Speaker 1: and respectfully requests that this court remedy the state's failure
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  Speaker 1: to comply with its obligations under the state and federal constitutions,
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  Speaker 1: state law, and rules of the Supreme Court of Idaho,
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  Speaker 1: and the scheduling order of this court. The state has
• 0:51
  Speaker 1: failed to provide expert disclosures that are specific enough to
• 0:54
  Speaker 1: understand what testimony and discovery the It intends to rely on,
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  Speaker 1: depriving Mr. Kohlberger of the ability to conduct an independent
• 1:01
  Speaker 1: review and investigation of the evidence it will rely on. Additionally,
• 1:05
  Speaker 1: as counsel has previously stated, the discovery in this case
• 1:08
  Speaker 1: has been provided in a manner that is as though
• 1:11
  Speaker 1: the state took tens of thousands of documents, photos, and
• 1:14
  Speaker 1: video clips and shook them up in a snow globe.
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  Speaker 1: While defense counsel has made Herculean efforts to review the
• 1:20
  Speaker 1: discovery provided, there is no possible way that all of
• 1:24
  Speaker 1: the discovery, which is equivalent to 68,000 copies of the
• 1:27
  Speaker 1: Encyclopedia Britannica, can be reviewed prior to trial date. Indeed,
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  Speaker 1: a defense expert informed counsel it would require three additional
• 1:36
  Speaker 1: years to review all the discovery from the 67 electronic
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  Speaker 1: devices and digital data alone. By providing discovery in this manner,
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  Speaker 1: the state is failing to comply with the obligation's under
• 1:47
  Speaker 1: Brady v. Maryland, 373 U.S. 83, Giglio v. United States,
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  Speaker 1: Kyles v. Whitley, State v. Lankford, and Grubb v. State.
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  Speaker 1: These cases require the prosecution to provide exculpatory and impeaching
• 2:02
  Speaker 1: information to the defense, including any information that would tend
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  Speaker 1: to mitigate the punishment, even if it's not constitutionally material,
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  Speaker 1: in a manner and time frame that it could be
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  Speaker 1: reasonably relied upon in preparing for trial. As discussed in
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  Speaker 1: this motion, in cases with enormous amounts of electronic data,
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  Speaker 1: the prosecution does not meet that standard by providing discovery
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  Speaker 1: in a matter that is effectively buries the exculpatory impeachment
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  Speaker 1: and mitigation information. Timely and meaningful disclosure is indispensable to
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  Speaker 1: the effectuation of the right to a fair trial due process,
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  Speaker 1: effective assistance of counsel, and the right to be free
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  Speaker 1: from cruel and unusual punishment. Pursuant to the 6th, 8th,
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  Speaker 1: and 14th Amendments, of the United States Constitution and Section
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  Speaker 1: 6 and 13 of Article 1 of the Constitution of
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  Speaker 1: the State of Idaho. Mr. Kohlberger requests that the Court
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  Speaker 1: exclude evidence and testimony that the State has not yet
• 3:00
  Speaker 1: provided inadequate expert disclosures. An accompanying motion in limine has
• 3:05
  Speaker 1: been filed regarding the specifics of this evidence. The details
• 3:10
  Speaker 1: are not repeated herein, but incorporated by reference. Exclusion of
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  Speaker 1: that evidence, however, is insufficient to cure the whole of
• 3:17
  Speaker 1: the prejudice to Mr. Koberger. Like other trial courts around
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  Speaker 1: the country, this court must also, one, order the prosecution
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  Speaker 1: to provide a detailed index of documents it intends to
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  Speaker 1: rely on, as well as an index of Brady information,
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  Speaker 1: and two, preclude the death penalty at the upcoming trial
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  Speaker 1: in order to meet the constitutional standards of due process
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  Speaker 1: and a fair trial. Mr. Kohlberger acknowledges this motion, requests
• 3:44
  Speaker 1: preclusion of the death penalty as one of the remedies
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  Speaker 1: after the court's order deadline. However, good cause exists for
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  Speaker 1: this filing. The state has produced an enormous amount of
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  Speaker 1: disorganized data, continues to provide discovery past their deadline, refuses
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  Speaker 1: to provide requested supplemental discovery, and has failed to abide
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  Speaker 1: by expert disclosure rule and order. Relevant Background Mr. Kohlberger
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  Speaker 1: has consistently demanded that the prosecution comply with its obligation
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  Speaker 1: under the state and federal constitutions to provide exculpatory and
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  Speaker 1: impeaching information to the defense, as well as any information
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  Speaker 1: that would tend to mitigate the punishment. The defense has
• 4:23
  Speaker 1: filed more than 20 supplemental requests for discovery, specifying evidence
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  Speaker 1: the state has failed to turn over. The state has
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  Speaker 1: turned over more than 68 terabytes of data. That much
• 4:34
  Speaker 1: data is the equivalent of 68,000 copies of of the
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  Speaker 1: Encyclopedia Britannica. See Elizabeth Stafford pre-trial discovery of electronically stored information.
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  Speaker 1: The average 400 gigabyte laptop hard drive can store over
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  Speaker 1: 200 million pages, the equivalent of five floors of typical
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  Speaker 1: academic library. Put another way, one gigabyte of text files
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  Speaker 1: will average over 677,000 text file pages and over 100,000
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  Speaker 1: pages of email files. One terabyte contains 1,000 gigabytes, thus
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  Speaker 1: 68 terabytes of text files will average more than 46
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  Speaker 1: million text pages or nearly 7 million pages of email files.
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  Speaker 1: The discovery that's been provided includes more than 13,000 photographs,
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  Speaker 1: more than 15,000 video clips from businesses, and more than 8,000
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  Speaker 1: video clips from residences. It also includes more than 60
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  Speaker 1: plus digital devices, and digital data and search warrant data,
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  Speaker 1: including cell phones and laptops from Mr. Koberger, the victims,
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  Speaker 1: alternate suspects, and various other individuals who knew the victims.
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  Speaker 1: While the state has had access to many dozens or
• 5:46
  Speaker 1: even hundreds of detectives and investigators from multiple law enforcement agencies,
• 5:51
  Speaker 1: including the FBI, in addition to the use of expensive
• 5:54
  Speaker 1: AI and technological programs to facilitate production and review of
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  Speaker 1: this massive amount of discovery, The defense teams consist of
• 6:02
  Speaker 1: three attorneys, a mitigation specialist, and three investigators. There is
• 6:07
  Speaker 1: no way, even through the greatest of due diligence, that
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  Speaker 1: the defense can independently review all of this discovery. In
• 6:15
  Speaker 1: providing discovery, the state has not provided it in a
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  Speaker 1: searchable format, has not provided detailed logs and indexes that
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  Speaker 1: would facilitate the defense's review of the evidence, and has
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  Speaker 1: not provided an index of Brady evidence or evidence that
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  Speaker 1: may be relevant to the defense. Additionally, the court set
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  Speaker 1: an expert disclosure deadline that passed more than one month ago.
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  Speaker 1: While the defense complied, the state provided vague disclosures that
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  Speaker 1: failed to identify opinions that experts would provide or detail
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  Speaker 1: the facts and evidence they would rely on for those opinions.
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  Speaker 1: For example, the state's expert disclosure list three alleged experts
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  Speaker 1: who would testify relating to the 67 electronic devices, digital data,
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  Speaker 1: and search warrant return data as provided in discovery. The
• 7:01
  Speaker 1: scope of that evidence is so broad that a defense
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  Speaker 1: expert estimated it would take more than three years to review.
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  Speaker 1: The state did not identify any actual opinions it attends
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  Speaker 1: to elicit about these devices and failed to identify any
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  Speaker 1: portions of the data that would be presented or relied upon. Well,
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  Speaker 1: after the disclosure deadline, the state turned over a report
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  Speaker 1: stating that examinations of the devices are ongoing and which
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  Speaker 1: only heightens the prejudice to Mr. Kohlberger and further depletes
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  Speaker 1: his time to conduct any independent review or evaluation of
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  Speaker 1: the state's evidence. This is only one of many disclosures
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  Speaker 1: in which the state failed to identify what opinion the
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  Speaker 1: expert would testify to and failed to point to specific
• 7:46
  Speaker 1: evidence or discovery that would be relied upon. Moreover, even
• 7:50
  Speaker 1: after this court told the state that its job was
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  Speaker 1: not done, With its expert disclosures, the state produced a
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  Speaker 1: circular argument, blaming the defense in its rebuttal disclosures about
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  Speaker 1: the electronics, digital data, and third-party warrants. No additional opinions, clarifications,
• 8:07
  Speaker 1: or specifics were provided. And finally, Mr. Koberger requested additional
• 8:13
  Speaker 1: discovery related to IGG after he learned of its existence
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  Speaker 1: for the first time in his motion to suppress. The
• 8:20
  Speaker 1: state acknowledged it had undisclosed information but refused, in part,
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  Speaker 1: to provide it, and promised in part to provide some information.
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  Speaker 1: No discovery has been disclosed. See also Mr. Kohlberger's motion
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  Speaker 1: in limine to exclude IGG. As discussed below, the state
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  Speaker 1: has gained a tactical advantage that cannot be remedied now,
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  Speaker 1: and therefore this court must take affirmative steps to put Mr.
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  Speaker 1: Kohlberger back on equal ground. The argument. 1. Prosecution discovery
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  Speaker 1: obligations under the federal and Idaho constitutions and Idaho law.
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  Speaker 1: Both federal and Idaho constitutions, as well as Idaho law,
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  Speaker 1: require that the prosecution turn over any materials to the defense,
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  Speaker 1: which may help the accused either by negating the guilt,
• 9:06
  Speaker 1: mitigating punishment, or impeaching the state's witnesses. A. Prosecution has
• 9:12
  Speaker 1: a constitutional duty to identify, preserve, and disclose exculpatory information.
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  Speaker 1: Under the Due Process Clause of the 14th Amendment, the U.S. Constitution,
• 9:23
  Speaker 1: and Article I, Section 13 of the Idaho Constitution, criminal
• 9:27
  Speaker 1: defendants are entitled to proceedings that comport with prevailing notions
• 9:31
  Speaker 1: of fundamental fairness. These notions of fundamental fairness require that
• 9:36
  Speaker 1: a defendant be provided with evidence favorable to the defense. Accordingly,
• 9:40
  Speaker 1: the state violates a defendant's due process rights whenever the
• 9:44
  Speaker 1: state suppresses evidence that is material either to guilt or
• 9:47
  Speaker 1: to punishment, irrespective of the good faith or bad faith
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  Speaker 1: of the prosecution. The prosecutor's duty to produce this material
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  Speaker 1: is self-executing. She must turn over Brady material regardless of
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  Speaker 1: whether the defense has made a specific request. The good
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  Speaker 1: faith or bad faith of the prosecutor is not relevant
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  Speaker 1: to the Brady inquiry. See Giglio v. United States, 1972.
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  Speaker 1: Whether the nondisclosure was a result of negligence or design,
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  Speaker 1: it is the responsibility of the prosecutor. The prosecutor's office
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  Speaker 1: is an entity, and as such, it is the spokesman
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  Speaker 1: for the government. The duty exists even if the defense, conceivably,
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  Speaker 1: might have access to the information independently. United States v. Schaefer,
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  Speaker 1: 9th Circuit, 1986. Nondisclosure of government witness paid informant status,
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  Speaker 1: not absolved even if defendant, might have uncovered it through
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  Speaker 1: independent sources. Tapes disclosed to co-defendant not effectively disclosed to
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  Speaker 1: defendant because trial strategies of co-defendant often conflict. All right,
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  Speaker 1: we're going to wrap up this episode right here. And
• 10:57
  Speaker 1: in the next episode, we're going to pick up with B.
• 10:59
  Speaker 1: The state suppresses exculpatory evidence when it does not timely
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  Speaker 1: disclose this evidence. If you'd like to contact me, you
• 11:06
  Speaker 1: can do that at bobbycapucci at protonmail.com. That's B-O-B-B-Y-C-A-P-U-C-C-I at protonmail.com.
• 11:14
  Speaker 1: Or if you prefer, you can find me on X
• 11:17
  Speaker 1: at B-O-B-B-Y underscore C-A-P-U-C-C-I. All of the links that go
• 11:22
  Speaker 1: with this episode can be found in the description box.
• 11:25
  Speaker 1: What's up, everyone, and welcome to another episode of the
• 11:28
  Speaker 1: Moscow Murders and More. In this episode, we're getting right
• 11:31
  Speaker 1: back to the Brian Koberger motion, trying to preclude the
• 11:35
  Speaker 1: death penalty and adopt other necessary procedures due to the
• 11:39
  Speaker 1: state's numerous disclosure violations. B. The states suppress exculpatory evidence
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  Speaker 1: when it does not timely disclose this evidence. To comply
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  Speaker 1: with their constitutional obligations, the state must disclose exculpatory evidence
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  Speaker 1: in time for its effective use at trial. See Bagley,
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  Speaker 1: 473 U.S. at 676. Assessing materiality based on the impact
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  Speaker 1: of effective use of exculpatory evidence. United States, 1st Kappa, 267,
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  Speaker 1: 2nd Circuit, 2001. With respect to when the prosecution must
• 12:13
  Speaker 1: make a disclosure required by Brady, the law also appears
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  Speaker 1: to be settled. Brady material must be disclosed in time
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  Speaker 1: for its effective use at trial or at a plea proceeding.
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  Speaker 1: When the state fails to produce exculpatory evidence in time
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  Speaker 1: for its use at trial, the state has suppressed the
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  Speaker 1: evidence in violation of a defendant's due process rights. United
• 12:33
  Speaker 1: States v. Beasley, 5th Circuit, 1978. finding that the government
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  Speaker 1: suppressed exculpatory evidence by failing to timely produce statement of
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  Speaker 1: prosecution witness that differed from trial testimony. Additionally, when exculpatory
• 12:48
  Speaker 1: materials have been disclosed too late for their effective use
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  Speaker 1: at trial, the untimely disclosure implicates a defendant's constitutional right
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  Speaker 1: to the effective assistance of counsel under the Sixth Amendment
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  Speaker 1: to the U.S. Constitution and Article I, Section 13 of
• 13:03
  Speaker 1: the Idaho Constitution. The right to timely disclosure of favorable
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  Speaker 1: evidence guarantees an accused sufficient time to investigate and evaluate
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  Speaker 1: the evidence in preparation for trial. Moreno v. Commonwealth, 1990.
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  Speaker 1: In addition to allowing for full investigation, which could lead
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  Speaker 1: to more favorable or exonerating evidence, the timely disclosure of
• 13:26
  Speaker 1: Brady material can alert defendants to viable pretrial challenges such
• 13:31
  Speaker 1: as suppression of evidence, United States Gomez or Duno, 635
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  Speaker 1: 9th Circuit 2000, holding that Brady was violated in the
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  Speaker 1: pretrial context by suppression of a report that would have
• 13:43
  Speaker 1: demonstrated Fourth Amendment standing to challenging a search. Idaho Criminal
• 13:48
  Speaker 1: Rule 16A, the Idaho Rules of Professional Conduct, the ABA
• 13:52
  Speaker 1: Rules of Professional Conduct, and Brady Progeny all require timely
• 13:56
  Speaker 1: disclosure of discovery materials, meaning prosecutors must turn over information
• 14:02
  Speaker 1: at the earliest feasible opportunity. Idaho rules of professional conduct
• 14:07
  Speaker 1: are 3.8d, mandating timely disclosure to the defense. ABA rules
• 14:12
  Speaker 1: of professional conduct are 3.8d, mandating timely disclosure to the defense. C.
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  Speaker 1: Mitigating evidence is material when it may well have been
• 14:23
  Speaker 1: consequential to a jury's deliberations on punishment. In death penalty cases,
• 14:27
  Speaker 1: Brady includes information that may not exculpate, but that nonetheless
• 14:32
  Speaker 1: mitigates punishment. Cone v. Bell, 556 U.S. 449, 2009. Remanding
• 14:40
  Speaker 1: for resentencing so jury could consider suppressed evidence relating to
• 14:44
  Speaker 1: defendant's drug addiction incurred as a result of honorable military service.
• 14:49
  Speaker 1: As such, even when evidence is not probative at all
• 14:52
  Speaker 1: regarding the defendant's guilt or innocence, or even when the
• 14:56
  Speaker 1: evidence is more likely to support a finding of guilt
• 14:58
  Speaker 1: during the first phase of a capital trial, the evidence
• 15:02
  Speaker 1: may still be Brady material if it could lead to
• 15:04
  Speaker 1: lesser punishment. As the Supreme Court has emphasized, while evidence
• 15:09
  Speaker 1: that is material to guilt will often be material for
• 15:11
  Speaker 1: sentencing purposes as well, the converse is not always true.
• 15:16
  Speaker 1: As such, when the state has elected to seek the
• 15:18
  Speaker 1: death penalty, the Supreme Court has required a lesser showing
• 15:22
  Speaker 1: of materiality to establish a Brady violation. A sentence will
• 15:26
  Speaker 1: be reversed when the cumulative impact of the evidence may
• 15:30
  Speaker 1: well have been material to the jury's sentencing decision. CID
• 15:36
  Speaker 1: at 475, vacating Cohn's sentence because the accumulative impact of
• 15:40
  Speaker 1: the missing witness statements, police teletypes, and interview notes regarding
• 15:45
  Speaker 1: Cohn's drug use may well have been material to the
• 15:47
  Speaker 1: jury's sentencing deliberations even though they were not material to
• 15:51
  Speaker 1: the insanity defense in the guilt-innocence phase. D. The obligation
• 15:57
  Speaker 1: to disclose exculpatory evidence extends beyond what the prosecution are
• 16:01
  Speaker 1: personally aware of and beyond four walls of a prosecutor's office.
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  Speaker 1: It applies to federal law enforcement officers, state lab technicians,
• 16:09
  Speaker 1: and other state actors. The prosecution's obligation to preserve and
• 16:14
  Speaker 1: disclose exculpatory evidence does not turn on whether the prosecutor
• 16:18
  Speaker 1: knows of the evidence. The duty of disclosure enunciated in
• 16:22
  Speaker 1: Brady is an obligation of not just the individual prosecutor
• 16:26
  Speaker 1: assigned to the case, but of all government agents having
• 16:29
  Speaker 1: a significant role in investigating and prosecuting the offense. Thus,
• 16:33
  Speaker 1: the prosecutor is constitutionally obligated to actively investigate and preserve
• 16:38
  Speaker 1: potentially exculpatory evidence. Commonwealth of North Mariana Islands v. Bowie, F. 3D,
• 16:45
  Speaker 1: 9th Circuit, 2001. A bad faith failure to collect potentially
• 16:49
  Speaker 1: exculpatory evidence would violate the Due Process Clause. Due process
• 16:53
  Speaker 1: requires law enforcement to gather and to collect evidence in
• 16:56
  Speaker 1: those cases in which the police themselves, by their conduct,
• 17:00
  Speaker 1: indicate that the evidence could form a basis for exonerating
• 17:03
  Speaker 1: the defendant. The prosecution may not be excused from disclosing
• 17:09
  Speaker 1: what it does not know, but could have learned. Carragher v. Stewart,
• 17:12
  Speaker 1: 132 9th Circuit, 1997. Additionally, the prosecution may not delegate
• 17:19
  Speaker 1: the job of determining what evidence must be turned over
• 17:22
  Speaker 1: to the defense, but instead must affirmatively seek out all
• 17:26
  Speaker 1: relevant information from everyone involved in an investigation. Kyle's 514 U.S.
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  Speaker 1: at 438. Explaining that it's the prosecutor's duty to discharge
• 17:37
  Speaker 1: the government's Brady responsibility, and therefore prosecutors will not be
• 17:41
  Speaker 1: excused for failing to turn over information that was known
• 17:44
  Speaker 1: to the police. Given this obligation, it's obvious that Brady
• 17:48
  Speaker 1: extends well beyond the four walls of a prosecutor's office.
• 17:53
  Speaker 1: Because Brady does not require bad faith on the part
• 17:56
  Speaker 1: of the prosecution, the state's obligation is an affirmative duty
• 17:59
  Speaker 1: to learn of and then disclose exculpatory evidence in the
• 18:03
  Speaker 1: custody of other members of the prosecution team, as well
• 18:07
  Speaker 1: as other state actors involved in the case. Therefore, a
• 18:10
  Speaker 1: prosecutor's Brady obligation... It extends to exculpatory information obtained or
• 18:15
  Speaker 1: possessed by any federal investigative agency with involvement in a case,
• 18:20
  Speaker 1: including the Federal Bureau of Investigation, United States v. Zuno Arce, 44F. 3D,
• 18:26
  Speaker 1: 9th Circuit, 1995, explaining that a federal prosecutor is deemed
• 18:31
  Speaker 1: to have knowledge of and access to anything in the
• 18:34
  Speaker 1: custody or control of any federal agency participating in the
• 18:38
  Speaker 1: same investigation of the defendant. State Lab Technicians, Brown, 17 Cal, 4th, 873, 1998.
• 18:48
  Speaker 1: Reversing death penalty convictions for prosecution's failure to disclose forensic
• 18:53
  Speaker 1: crime lab worksheets showing possible drugs which could have affected
• 18:56
  Speaker 1: defendant's mental state, even though prosecutors had no actual knowledge
• 19:01
  Speaker 1: of the worksheets. Prosecutors will be deemed to have knowledge
• 19:05
  Speaker 1: of and access to anything in the possession, custody, or
• 19:07
  Speaker 1: control of any federal agency participating in the same investigation
• 19:12
  Speaker 1: of the defendant. Probation Department, United States v. Alvarez, 2004,
• 19:18
  Speaker 1: and Crime Labs and Brown, 17 Cal, 873, denied, 525 U.S., 1998,
• 19:25
  Speaker 1: reversing death penalty conviction for prosecution's failure to disclose forensic
• 19:30
  Speaker 1: crime lab worksheet showing possible drugs, which could have affected
• 19:33
  Speaker 1: defendant's mental state, even though prosecutor had no actual knowledge
• 19:37
  Speaker 1: of that worksheet. E. Idaho Criminal Rule 16A requires the
• 19:43
  Speaker 1: timely disclosure of exculpatory evidence. In addition to a prosecutor's
• 19:47
  Speaker 1: Brady obligations, Idaho Criminal Rule 16A requires the prosecution to disclose,
• 19:53
  Speaker 1: as soon as practicable, any material or information which tends
• 19:57
  Speaker 1: to negate the guilt of the accused as to the
• 20:00
  Speaker 1: offense charged or reduce the punishment thereof. These obligations extend
• 20:06
  Speaker 1: to any information and material in the possession or control
• 20:09
  Speaker 1: of members of the prosecuting attorney staff, and of any
• 20:13
  Speaker 1: others who have participated in the investigation or evaluation of
• 20:17
  Speaker 1: the case, ICR 16A. Additionally, ICR 16's disclosure requirements apply
• 20:24
  Speaker 1: even if prosecutors do not personally know of exculpatory and
• 20:28
  Speaker 1: mitigating information. See State v. Gardner, 126 Idaho, 428, 1994.
• 20:32
  Speaker 1: Holding that a prosecutor violated Brady and ICR 16A, even
• 20:40
  Speaker 1: though he was personally unaware of an exculpatory witness statement
• 20:44
  Speaker 1: made to police. Therefore, ICR 16 charges Idaho prosecutors with
• 20:49
  Speaker 1: affirmative duty to seek out and obtain all exculpatory and
• 20:53
  Speaker 1: mitigating evidence and disclose it to the defense in a
• 20:56
  Speaker 1: timely manner. F. The Idaho rules of professional conduct require
• 21:01
  Speaker 1: the timely disclosure of exculpatory evidence. The Idaho rules of
• 21:06
  Speaker 1: professional conduct require and the ABA model rules of professional
• 21:09
  Speaker 1: conduct further recognize the prosecutor's ethical duty to make timely
• 21:13
  Speaker 1: disclosure to the defense of all evidence or information known
• 21:17
  Speaker 1: to the prosecutor that tends to negate the guilt of
• 21:20
  Speaker 1: the accused or mitigates the offense and in connection with
• 21:24
  Speaker 1: the sentencing disclosed to the defense and to the tribunal
• 21:27
  Speaker 1: or all unprivileged, mitigating information known to the prosecutor, except
• 21:32
  Speaker 1: when the prosecutor is relieved of the responsibility by a
• 21:35
  Speaker 1: protective order of the tribunal. Idaho Rules Professional Conduct R. 3. 8d
• 21:41
  Speaker 1: The ABA criminal discovery standards further reflect a prosecutor's well-selected
• 21:48
  Speaker 1: discovery obligations and admonish the prosecution against to turn over
• 21:52
  Speaker 1: any and all information within their control that would 1.
• 21:55
  Speaker 1: tend to negate the guilt of the defendant, 2. tend
• 21:58
  Speaker 1: to reduce the punishment of the defendant, or 3. any
• 22:01
  Speaker 1: material which may be used for impeachment. Furthermore, the prosecution
• 22:06
  Speaker 1: must disclose to the defense when they are aware of
• 22:09
  Speaker 1: information but do not have evidence verifying the information when
• 22:13
  Speaker 1: it would be discoverable if it were in their possession
• 22:16
  Speaker 1: or control. All right, we're going to wrap up right here.
• 22:20
  Speaker 1: And in the next episode, we're going to pick up
• 22:21
  Speaker 1: with two. The prosecution has turned over mountains of unorganized
• 22:25
  Speaker 1: electronically stored data that defense counsel cannot possibly review prior
• 22:30
  Speaker 1: to trial. If you'd like to contact me, you can
• 22:34
  Speaker 1: do that at bobbycapucci at protonmail.com. That's B-O-B-B-Y-C-A-P-U-C-C-I at protonmail.com.
• 22:42
  Speaker 1: Or if you prefer, you can find me over on
• 22:44
  Speaker 1: X at B-O-B-B-Y underscore C-A-P-U-C-C-I All of the links that
• 22:50
  Speaker 1: we discuss can be found in the description box. What's
• 22:54
  Speaker 1: up everyone and welcome to another episode of the Moscow
• 22:57
  Speaker 1: Murders and More. In this episode, we're going to pick
• 23:00
  Speaker 1: up where we left off with Brian Kohlberger's motion to
• 23:03
  Speaker 1: preclude the death penalty and adopt other necessary procedures due
• 23:07
  Speaker 1: to the state's numerous disclosure violations. 2. The prosecution has
• 23:12
  Speaker 1: turned over mountains of unorganized electronically stored data that the
• 23:16
  Speaker 1: defense counsel cannot possibly review prior to trial. When exculpatory
• 23:20
  Speaker 1: material is contained in voluminous amounts of electronically stored records,
• 23:25
  Speaker 1: the state violates its Brady obligations by doing nothing more
• 23:28
  Speaker 1: than turning it over unorganized on a drive. United States v.
• 23:32
  Speaker 1: Sailor 2010 U.S. California 2010 The court ordered the prosecution
• 23:39
  Speaker 1: to identify Rule 16 Brady and Giglio documents contained in
• 23:44
  Speaker 1: the discovery production as a matter of case management and fairness.
• 23:48
  Speaker 1: The court noted, In light of the above and to
• 23:51
  Speaker 1: return to the real problem here, it bears repetition to
• 23:54
  Speaker 1: emphasize that the ultimate issue is whether there is disclosure
• 23:57
  Speaker 1: in the letter in spirit of Brady Giglio simply by
• 24:01
  Speaker 1: turning over a mountain of everything acquired over half a
• 24:04
  Speaker 1: decade and telling the defense counsel, Nothing about where exculpatory
• 24:09
  Speaker 1: impeaching information can be found. Again, the government cannot meet
• 24:13
  Speaker 1: its Brady obligations by providing the defendant with access to 600,000
• 24:17
  Speaker 1: documents and then claiming that she should have been able
• 24:20
  Speaker 1: to find the exculpatory information in the haystack. United States v.
• 24:25
  Speaker 1: Hisia 24F. SUPP 1998 Or as the undersigned put it in
• 24:32
  Speaker 1: the initial order, at some point long since passed in
• 24:35
  Speaker 1: this case, a duty to disclose may be unfulfilled by
• 24:38
  Speaker 1: disclosing too much. At some point, disclosure, in order to
• 24:42
  Speaker 1: be meaningful, requires identification as well. See also idea 5,
• 24:48
  Speaker 1: concluding that the government must identify Brady Materials in electronic records,
• 24:53
  Speaker 1: that there is no authority for a conclusion to the contrary,
• 24:57
  Speaker 1: and that it would be an evisceration of constitutional rights
• 25:00
  Speaker 1: to shift the burden to the defense to review the
• 25:02
  Speaker 1: records and identify Brady Materials. United States v. Cutting, 2017,
• 25:08
  Speaker 1: WL 1324023, at 10. Northern District of California, January 12, 2017,
• 25:16
  Speaker 1: ordering that the government identify all exculpatory and impeachment materials
• 25:21
  Speaker 1: in an already produced copy of electronic records because of
• 25:24
  Speaker 1: the voluminous nature of the records and the government's production
• 25:27
  Speaker 1: and formats that seriously impedes defendants' ability to search the ESI.
• 25:34
  Speaker 1: United States v. Blankenship, 2015, June 2015. Without more, the
• 25:39
  Speaker 1: United States does not comply with the requirement of Brady
• 25:42
  Speaker 1: by merely including all known Brady material within the 4
• 25:45
  Speaker 1: million plus pages of discovery. United States v. Anon, 10CR-260, MD,
• 25:54
  Speaker 1: May 10, 2011. The court concludes that the government's blanket
• 25:58
  Speaker 1: provision here of 142 disc's including disks unrelated to this action,
• 26:04
  Speaker 1: does not discharge it of its Brady and Giglio obligations.
• 26:09
  Speaker 1: In the context of the vast electronic records, even the
• 26:12
  Speaker 1: circuit courts that have adopted the most narrow approach to
• 26:15
  Speaker 1: prosecutors' Brady obligations have held that the government must do
• 26:19
  Speaker 1: more than simply reduce the contents of these devices. In
• 26:23
  Speaker 1: United States v. Skilling, in part vacated on other grounds,
• 26:26
  Speaker 1: 561 U.S. 2010, The defendant challenged the government's open file
• 26:32
  Speaker 1: disclosure of several hundred million pages of discovery in an
• 26:35
  Speaker 1: electronic file. However, the Fifth Circuit held that this voluminous
• 26:40
  Speaker 1: discovery did not violate Brady obligations because 1. The government
• 26:45
  Speaker 1: provided copies of the electronic files to the defense. 2.
• 26:49
  Speaker 1: The electronic file was searchable. 3. The government produced an
• 26:52
  Speaker 1: index of hot documents indicating the documents that were important
• 26:56
  Speaker 1: to its case as well as to documents that included
• 26:59
  Speaker 1: documents potentially exculpatory evidence, and 4. the government had created
• 27:04
  Speaker 1: a number of other databases to assist the defense review
• 27:08
  Speaker 1: of the evidence. As such, in the context of voluminous
• 27:11
  Speaker 1: electronic data, this standard requires that the government go beyond
• 27:16
  Speaker 1: merely providing a defendant with an open file. The state
• 27:20
  Speaker 1: has taken none of the steps beyond mere production in
• 27:23
  Speaker 1: this case. The electronic file is not searchable. defense counsel
• 27:27
  Speaker 1: must locate and click into each and every separate document,
• 27:31
  Speaker 1: of which there are many thousands, to find its contents.
• 27:34
  Speaker 1: The state has not produced an index to document that
• 27:38
  Speaker 1: it will rely on in its case. To the contrary,
• 27:40
  Speaker 1: the expert disclosure deadline has come and gone without the
• 27:43
  Speaker 1: state identifying its expert's conclusions and which documents it will
• 27:47
  Speaker 1: use to support those conclusions. The state has not provided
• 27:52
  Speaker 1: an index of Brady material, including exculpatory and impeachment information,
• 27:56
  Speaker 1: nor an index of documents that are potentially relevant to
• 27:59
  Speaker 1: the defense case. Indeed, the state has not provided anything
• 28:05
  Speaker 1: to assist in the defense review, despite the knowledge that
• 28:08
  Speaker 1: it would be impossible even though the exercise of due
• 28:11
  Speaker 1: diligence to identify exculpatory or impeachment evidence within the hundreds
• 28:16
  Speaker 1: of millions of pages, tens of thousands of photos, and
• 28:19
  Speaker 1: thousands of hours of videotape and audio recordings. Under the
• 28:23
  Speaker 1: more exacting standards adopted by other courts, it's even more
• 28:27
  Speaker 1: plainly apparent that the state's approach to its Brady obligations
• 28:31
  Speaker 1: runs afoul of Mr. Koberger's due process rights. For example,
• 28:35
  Speaker 1: the District of Columbia has rejected the Fifth Circuit's standard
• 28:38
  Speaker 1: as too lenient, thereby directing the government to identify exculpatory
• 28:43
  Speaker 1: information within its voluminous production. United States v. Safarina, DDC
• 28:49
  Speaker 1: 2020 directing the government to create an index of exculpatory
• 28:54
  Speaker 1: and impeachment information for the 600,000 pages of discovery that
• 28:59
  Speaker 1: had been disclosed to the defense. Open file discovery does
• 29:03
  Speaker 1: not relieve the government of its Brady obligations. The government
• 29:08
  Speaker 1: cannot meet its Brady obligations by providing Ms. Hisia with
• 29:12
  Speaker 1: access to 600,000 documents and then claiming that she should
• 29:15
  Speaker 1: have been able to find the exculpatory information in the haystack. 3.
• 29:22
  Speaker 1: the state has not timely produced indexed or identifiable portions
• 29:26
  Speaker 1: of contents relating to the 67 electronic devices and warrant
• 29:30
  Speaker 1: returns it intends to rely on. The above problem is
• 29:34
  Speaker 1: exemplified by, though certainly not limited to, the 67 electronic
• 29:37
  Speaker 1: devices and other digital data and search warrant returns that
• 29:42
  Speaker 1: the state has turned over. Since the state has not
• 29:45
  Speaker 1: provided specific reports or indexes of materials it intends to
• 29:49
  Speaker 1: use from the devices, digital data and search warrant returns,
• 29:53
  Speaker 1: the defendant must guess which form electronic reading software is utilized.
• 29:58
  Speaker 1: For most devices, no specific report has been produced. For
• 30:02
  Speaker 1: some devices, Axiom is used, and for some, Celebrite. The
• 30:06
  Speaker 1: software produces different results for the same device. Each device
• 30:10
  Speaker 1: results in an enormous volume of information to sift through.
• 30:13
  Speaker 1: A single cell phone often produces more than 10,000 pages
• 30:17
  Speaker 1: of material. This is because modern-day electronic devices, including cell phones,
• 30:23
  Speaker 1: have the capacity to store vast amounts of highly personal information.
• 30:27
  Speaker 1: See Riley vs. California, 2014. Prior to the digital age,
• 30:32
  Speaker 1: people did not typically carry a cache of sensitive personal
• 30:36
  Speaker 1: information with them as they went about their day. Now
• 30:39
  Speaker 1: it is the person who is carrying a cell phone,
• 30:42
  Speaker 1: with all that it contains, who is the exception. Not
• 30:46
  Speaker 1: only can these devices store immense amounts of information, but
• 30:49
  Speaker 1: they also generate records that would otherwise never exist. See
• 30:53
  Speaker 1: ID at 2491. A phone not only contains a digital
• 30:57
  Speaker 1: form many sensitive records previously found in the home, it
• 31:00
  Speaker 1: also contains a broad array of private information never found
• 31:04
  Speaker 1: in a home in any form, unless the phone is.
• 31:07
  Speaker 1: Given the capacity for a person's electronic device to effortlessly
• 31:11
  Speaker 1: generate and compile vast amounts of information, searches of these
• 31:14
  Speaker 1: devices typically expose far more than the most exhaustive search
• 31:19
  Speaker 1: of a house, and may enable the reconstruction of the
• 31:22
  Speaker 1: sum of an individual's private life. See United States vs.
• 31:28
  Speaker 1: Andrews 483, F. 3D 2007. For most people, their computers are
• 31:34
  Speaker 1: their most private spaces. People commonly talk about the bedroom
• 31:39
  Speaker 1: as a very private space, yet when they have parties,
• 31:42
  Speaker 1: all the guests, including perfect strangers, are invited to toss
• 31:45
  Speaker 1: their coats on the bed. But if one of those
• 31:48
  Speaker 1: guests is caught exploring the host computer, that will be
• 31:51
  Speaker 1: his last invitation. As such, the contents of all 67
• 31:55
  Speaker 1: electronic devices, digital data, and search warrants returned seized in
• 31:59
  Speaker 1: this case contain enough information to paint a portrait of
• 32:03
  Speaker 1: the daily lives of Mr. Kohlberger, the victims, the witnesses,
• 32:07
  Speaker 1: alternate suspects, and people close to the victims. Given that
• 32:11
  Speaker 1: the state's case is almost entirely circumstantial, patterns of evidence
• 32:15
  Speaker 1: that emerge out of these devices may be key to
• 32:18
  Speaker 1: the jury's consideration of guilt or innocence. Courts often describe
• 32:23
  Speaker 1: evidence regarding potential alternative perpetrators as classic Brady material. Williams v. Ryan,
• 32:30
  Speaker 1: 9th Circuit, 2010. New evidence suggesting an alternative perpetrator is
• 32:35
  Speaker 1: classic Brady material. United States v. Jernigan, 492, 9th Circuit, 2007.
• 32:41
  Speaker 1: Withholding knowledge of a second suspect conflicts with the Supreme
• 32:45
  Speaker 1: Court's directive that the criminal trial, as distinct from the
• 32:48
  Speaker 1: prosecutor's private deliberations, be preserved as the chosen forum for
• 32:53
  Speaker 1: ascertaining the truth about criminal accusations. Boyette v. Lefebvre, 246,
• 32:59
  Speaker 1: 2nd Circuit, 2001. Describing such evidence as classic Brady material,
• 33:04
  Speaker 1: regardless of the state's ultimate conclusions about whom to prosecute,
• 33:09
  Speaker 1: withholding knowledge of a second suspect, conflicts with the Supreme
• 33:12
  Speaker 1: Court's directive that the criminal trials, as distinct from prosecutors'
• 33:16
  Speaker 1: private deliberations, be preserved as as the chosen forum for
• 33:19
  Speaker 1: ascertaining truth about criminal accusations. Countless cases have been overturned
• 33:25
  Speaker 1: due to prosecutors' failure to timely produce evidence that could
• 33:28
  Speaker 1: have helped the defense identify a potential alternate perpetrator. See
• 33:33
  Speaker 1: Comstock v. Humphreys, 786 F. 3D, 701 9th Circuit, 2015, finding
• 33:40
  Speaker 1: that prosecutors violated due process rights under Brady by failing
• 33:44
  Speaker 1: to disclose the complaint statement that it was possible that
• 33:48
  Speaker 1: he had misplaced the stolen ring, Jernigan 492 at 1057.
• 33:53
  Speaker 1: Finding that prosecutors violated Brady obligations by failing to disclose
• 33:57
  Speaker 1: to bank robbery defendant fact that other nearby banks had
• 34:00
  Speaker 1: been robbed after her arrest and the woman had been
• 34:03
  Speaker 1: detained with uncannily similar physical description, Trammell v. McCoon, 10th Circuit, 2007.
• 34:11
  Speaker 1: Holding that despite eyewitness identification of defendant, prosecutors, violated Brady
• 34:16
  Speaker 1: by failing to disclose to the defense evidence of a
• 34:20
  Speaker 1: potential alternate perpetrator with a similar appearance. Robinson v. Kane, 2007,
• 34:27
  Speaker 1: finding a Brady violation in a second-degree murder case due
• 34:30
  Speaker 1: to the state withholding a police report and corroborated that
• 34:34
  Speaker 1: the defendant's version of events and supplied a motive for
• 34:37
  Speaker 1: a different person to commit the offense. Harrington v. State,
• 34:41
  Speaker 1: Iowa 2003, finding that the prosecution violated Brady by failing
• 34:45
  Speaker 1: to disclose police reports identifying an alternative suspect. Because many
• 34:52
  Speaker 1: of these devices belong to witnesses, the victims, and to
• 34:55
  Speaker 1: people who knew the victims, including potential alternate perpetrators, defense
• 35:00
  Speaker 1: counsel is plainly obligated to review them. See U.S. vs. Chronic, 466-1984.
• 35:07
  Speaker 1: Explaining that where defense counsel never subjected the prosecution's case
• 35:11
  Speaker 1: to a meaningful adversarial testing, then there has been a
• 35:14
  Speaker 1: denial of Sixth Amendment rights that make the adversary process
• 35:18
  Speaker 1: itself presumptively unreasonable. See Sofer v. Dretke, Fifth Circuit, 2004.
• 35:25
  Speaker 1: An actual failure to investigate cannot be excused by a
• 35:28
  Speaker 1: hypothetical decision not to use its unknown results. Additionally, many
• 35:33
  Speaker 1: of the device and warrant returns belong to Mr. Kohlberger.
• 35:37
  Speaker 1: These devices and warrant returns will paint a comprehensive picture
• 35:40
  Speaker 1: of his life and therefore are likely to be key
• 35:43
  Speaker 1: to mitigation presentation at the sentencing phase. But the defense
• 35:48
  Speaker 1: cannot reasonably make the effective use of voluminous electronic records
• 35:52
  Speaker 1: because the state has not provided them in a detailed
• 35:55
  Speaker 1: or indexed manner. Reviewing and understanding all of the records
• 35:58
  Speaker 1: from these devices, digital data, and search warrant returns alone
• 36:02
  Speaker 1: would require three years, even if the defense counsel did
• 36:06
  Speaker 1: not look at any of the other discovery. Worse yet,
• 36:10
  Speaker 1: the state apparently intends to rely on this evidence to
• 36:13
  Speaker 1: establish guilt through three different experts, but has not identified
• 36:17
  Speaker 1: what opinions these experts have drawn from the evidence nor
• 36:20
  Speaker 1: which parts of the voluminous data they are relying on.
• 36:24
  Speaker 1: The state has created a situation where the defense is
• 36:26
  Speaker 1: completely in the dark and cannot mount even a limited investigation,
• 36:30
  Speaker 1: into rebutting their expert's testimony, including by identifying impeachment evidence
• 36:35
  Speaker 1: or evidence that contradicts their expert's opinions. Rather than cure
• 36:40
  Speaker 1: this defect when court told the state that its job
• 36:42
  Speaker 1: was not done with its expert disclosures, the state submitted
• 36:46
  Speaker 1: expert rebuttal disclosures that blame the defense for its inability
• 36:50
  Speaker 1: to properly disclose expert opinions related to electronics, digital data,
• 36:55
  Speaker 1: and search warrant returns. The state's failure to timely disclose
• 36:59
  Speaker 1: this evidence in a meaningful way has prevented Mr. Kohlberger
• 37:02
  Speaker 1: from developing a full defense to the allegations in this case.
• 37:06
  Speaker 1: As a result, the defense will not have the ability
• 37:09
  Speaker 1: to identify the critical pieces of evidence or conduct necessary
• 37:13
  Speaker 1: follow-up investigation on those pieces the state intends to rely
• 37:18
  Speaker 1: on in the merits phase. The failure of the state
• 37:21
  Speaker 1: to identify important documents in the massive electronic data dump
• 37:25
  Speaker 1: including exculpatory documents, will hamper Mr. Kohlberger's ability to meaningfully
• 37:30
  Speaker 1: contest the state's theory. Moreover, the state's failure to identify
• 37:35
  Speaker 1: exculpatory documents relating to the sentencing phase will prevent Capital
• 37:39
  Speaker 1: Jury from receiving a complete picture of the life of Mr. Kohlberger,
• 37:44
  Speaker 1: supported by electronically generated records, see Riley 124 at 2490,
• 37:50
  Speaker 1: describing the distinct characteristics of modern cell phones that make
• 37:54
  Speaker 1: them indispensable All right, we're going to wrap up right here.
• 38:25
  Speaker 1: And in the next episode, we're going to pick up
• 38:27
  Speaker 1: with four. Reviewing the discovery is only the beginning of
• 38:31
  Speaker 1: defense counsel's obligations. The defense must have time and opportunity
• 38:35
  Speaker 1: to conduct independent investigation of the state's evidence. If you'd
• 38:40
  Speaker 1: like to contact me, you can do that at bobbycapucci
• 38:42
  Speaker 1: at protonmail.com. That's B-O-B-B-Y-C-A-P-U-C-C-I at protonmail.com. Or if you prefer,
• 38:49
  Speaker 1: you can find me on X at B-O-B-B-Y underscore C-A-P-U-C-C-I.
• 38:56
  Speaker 1: All of the links that go with this episode can
• 38:57
  Speaker 1: be found in the description box. What's up, everyone, and
• 39:01
  Speaker 1: welcome back to the program. In this episode, we're going
• 39:04
  Speaker 1: to spin back up to Moscow, and we're going to
• 39:06
  Speaker 1: pick up where we left off with Brian Koberger and
• 39:09
  Speaker 1: his motion to preclude the death penalty and adopt other
• 39:12
  Speaker 1: necessary procedures due to the state's numerous disclosure violations. 4.
• 39:18
  Speaker 1: Reviewing discovery is only the beginning of the Defense Council's obligations.
• 39:23
  Speaker 1: The defense must have time and opportunity to conduct independent
• 39:27
  Speaker 1: investigation of the state's evidence. When the prosecution seeks a
• 39:31
  Speaker 1: death penalty, defense counsel must independently investigate all evidence, whether testimonial, forensic,
• 39:39
  Speaker 1: or otherwise, purporting to inculpate the client. See American Bar
• 39:44
  Speaker 1: Association guidelines for the appointment and Performance of Defense Counsel
• 39:48
  Speaker 1: in Death Penalty Cases, 31 Hofstra, Revised Edition, 913, 2003,
• 39:54
  Speaker 1: setting forth the expectations, obligations, of defense counsel in capital cases,
• 40:02
  Speaker 1: over 178 pages of guidelines and commentary, in recognizing the
• 40:07
  Speaker 1: large number of individuals sentenced to death, who were later
• 40:10
  Speaker 1: exonerated because they were innocent, 110 when the ABA guidelines
• 40:15
  Speaker 1: were written, at 1017, though the number now stands at
• 40:20
  Speaker 1: more than 195. The guidelines underscore the importance of defense
• 40:25
  Speaker 1: counsel's duty to take seriously the possibility of the client's innocence,
• 40:29
  Speaker 1: to scrutinize carefully the quality of the state's case, and
• 40:32
  Speaker 1: to investigate and reinvestigate all possible defenses. Thus, a meaningful
• 40:37
  Speaker 1: ability to review discovery and the state's case is essential
• 40:41
  Speaker 1: to the right to a fair trial and effective assistance
• 40:44
  Speaker 1: of counsel in a capital case. This is the case
• 40:47
  Speaker 1: where facts are in great dispute. Mr. Koberger asserts his innocence.
• 40:52
  Speaker 1: There is no confession. There is no video or audio
• 40:55
  Speaker 1: of the crime. There is no weapon. There is only
• 40:58
  Speaker 1: trace evidence on the movable object, a knife sheath. Having
• 41:02
  Speaker 1: full knowledge of the state's expert opinions and the documents
• 41:06
  Speaker 1: they will rely on will provide leads for further investigation
• 41:10
  Speaker 1: to uncover exculpatory evidence or to impeach prosecution witnesses. In
• 41:15
  Speaker 1: addition to a complete investigation of every piece of the
• 41:18
  Speaker 1: state's case, counsel is responsible for identifying and considering all
• 41:23
  Speaker 1: legal claims potentially available, even if those claims have consistently
• 41:27
  Speaker 1: lost in that jurisdiction. See Idea 1032. Counsel should object
• 41:33
  Speaker 1: to anything that appears unfair or unjust, even if it
• 41:36
  Speaker 1: involves challenging well-accepted practices. This is necessary because counsel in
• 41:42
  Speaker 1: a capital case has a duty to preserve... Any and
• 41:45
  Speaker 1: all conceivable errors for each stage of the appellate and
• 41:48
  Speaker 1: post-conviction review as a non-preservation issue at the trial stage
• 41:54
  Speaker 1: may result in a defendant's execution even if reversible errors occurred.
• 41:58
  Speaker 1: Idea 1030 explaining a case in which from a joint
• 42:03
  Speaker 1: capital trial one co-defendant was eventually executed because his counsel
• 42:07
  Speaker 1: failed to object to women being excluded from the jury
• 42:10
  Speaker 1: while the other co-defendant's case was reversed and he's now
• 42:13
  Speaker 1: serving life in prison. because his attorneys preserved the issue.
• 42:17
  Speaker 1: In a case as complex as this one, the state's
• 42:20
  Speaker 1: failure to direct defense to evidence it will rely on
• 42:23
  Speaker 1: in accordance with the court's schedule is highly prejudicial. It
• 42:27
  Speaker 1: will undoubtedly impact the defense's ability to meet the evidence
• 42:30
  Speaker 1: at trial, develop a comprehensive defense strategy, adequately respond to
• 42:35
  Speaker 1: each aspect of the state's case, and complete all pretrial
• 42:38
  Speaker 1: litigation about the admissibility of the evidence. Even assuming the
• 42:43
  Speaker 1: state discloses detailed expert disclosures and an index of hot
• 42:47
  Speaker 1: documents tomorrow, counsel will still need the remaining months before
• 42:51
  Speaker 1: trial to conduct independent investigation into the evidence and witnesses,
• 42:56
  Speaker 1: identify evidence that contradicts the state's theories, and incorporate all
• 43:01
  Speaker 1: of the new information into the defense. CEG LECA PORTANATO
• 43:05
  Speaker 1: 257 F. 3D 89101 SECOND CIRCUIT 2001 finding that the state
• 43:12
  Speaker 1: suppressed exculpatory evidence by identifying an eyewitness days before trial
• 43:17
  Speaker 1: such that the attorney could not reasonably be expected to
• 43:19
  Speaker 1: suspend other trial preparation to interview the witness and thereby
• 43:24
  Speaker 1: constituting a failure to make sufficient disclosure in sufficient time
• 43:28
  Speaker 1: to afford the defense an opportunity for use. It will
• 43:33
  Speaker 1: not be possible to do this to the extent required
• 43:35
  Speaker 1: in a death penalty case in addition to identifying and
• 43:38
  Speaker 1: preserving evidence All of the related legal claims that could
• 43:41
  Speaker 1: stem from the evidence, thus as discussed below, because heightened
• 43:45
  Speaker 1: reliability standards cannot possibly be met on this time frame,
• 43:49
  Speaker 1: the court must preclude the death penalty. 5. This is
• 43:53
  Speaker 1: a capital case, and heightened due process applies. The Supreme
• 43:57
  Speaker 1: Court has been clear that the death penalty must be
• 43:59
  Speaker 1: reserved for only those few offenders deemed extraordinarily culpable and
• 44:04
  Speaker 1: therefore uniquely deserving of death. Zant v. Stevens, 462 U.S., 1983.
• 44:10
  Speaker 1: The average murderer is insufficiently culpable to justify the most
• 44:14
  Speaker 1: extreme sanction available to the state. Akins v. Virginia, 536 U.S., 304, 319, 2002.
• 44:23
  Speaker 1: While every murder is appalling, only the most extreme qualify
• 44:27
  Speaker 1: for the death penalty. A case is not a capital
• 44:30
  Speaker 1: case just because it's the worst murder a community has
• 44:33
  Speaker 1: ever seen, nor is it capital because it technically checks
• 44:37
  Speaker 1: the box's of the necessary aggravating factors under a capital
• 44:41
  Speaker 1: sentencing statute. A case may only appropriately be capital in
• 44:45
  Speaker 1: the words of the U.S. Supreme Court when it falls
• 44:48
  Speaker 1: into a very narrow category of the most serious crimes
• 44:52
  Speaker 1: and involves a defendant whose extreme culpability makes them most
• 44:56
  Speaker 1: deserving of execution in the entire country. Roper v. Simmons, 2005.
• 45:01
  Speaker 1: See also Kennedy v. Louisiana, 2008. Explaining that the death
• 45:06
  Speaker 1: penalty must be limited to those offenders whose extreme culpability
• 45:11
  Speaker 1: makes them the most deserving of execution. Heightened constitutional obligations
• 45:16
  Speaker 1: apply in death penalty cases because a life or death
• 45:19
  Speaker 1: sentencing decision is qualitatively different from sentencing decisions involving or
• 45:24
  Speaker 1: involved in any other kind of cases. The nature, quality,
• 45:30
  Speaker 1: and gravity of death cases make the defense of capital
• 45:33
  Speaker 1: cases fundamentally unlike any other type of legal endeavor. As
• 45:38
  Speaker 1: a result, death penalty trials require a specially stringent due
• 45:42
  Speaker 1: process from both the judge and attorneys and may not
• 45:45
  Speaker 1: be treated as standard criminal cases. 6. Mr. Kohlberger has
• 45:50
  Speaker 1: been prejudiced by the state's failure to fulfill its disclosure
• 45:53
  Speaker 1: obligations and judicial remedy is required. Because the state has
• 45:57
  Speaker 1: failed to satisfy its disclosure obligations in a manner that
• 46:01
  Speaker 1: would enable Mr. Kohlberger to further investigate and incorporate exculpatory
• 46:05
  Speaker 1: evidence into his defense and for an August 2025 trial, Mr.
• 46:09
  Speaker 1: Kohlberger will be deprived of a fair trial and the
• 46:12
  Speaker 1: right to effective assistance of counsel if the court does
• 46:15
  Speaker 1: not remedy this situation. This court has wide discretion to
• 46:19
  Speaker 1: remedy discovery violations as inappropriate under the circumstances ICR 16-K. Generally,
• 46:27
  Speaker 1: when the state has failed to timely produce evidence in
• 46:29
  Speaker 1: violation of the Constitution, the trial court must choose between
• 46:33
  Speaker 1: barring further prosecution and or suppressing the state's most probative evidence,
• 46:37
  Speaker 1: Trombetta 467 U.S. at 487. In past cases, courts have
• 46:42
  Speaker 1: entirely dismissed indictments based on discovery violations to protect the
• 46:47
  Speaker 1: defendant's constitutional rights to sanction the government for misconduct and
• 46:51
  Speaker 1: to deter future Brady abuses. See United States v. Diabati,
• 46:57
  Speaker 1: 90F SUPP 2D at 140. DeMass 2000 dismissing indictment because
• 47:02
  Speaker 1: prosecution failed to follow two local rules of discovery requiring
• 47:05
  Speaker 1: them to 1. Inform all law enforcement agencies of their
• 47:09
  Speaker 1: discovery obligations and 2. Require all agents involved in the
• 47:13
  Speaker 1: case to maintain contemporaneous notes. United States v. Dollar F.S.U.P.P.
• 47:20
  Speaker 1: Alabama 98 Dismissing case with prejudice after government flagrantly breached
• 47:27
  Speaker 1: its obligation under Brady to produce exculpatory and impeachment materials
• 47:32
  Speaker 1: in a timely manner. Mr. Kohlberger is not requesting dismissal
• 47:36
  Speaker 1: of the indictment for these violations, at least at this point,
• 47:39
  Speaker 1: because five months remain before trial, the defense believes there
• 47:42
  Speaker 1: are remedies that this court can order, short of dismissing
• 47:46
  Speaker 1: the case that will likely remedy a significant amount of prejudice. 1.
• 47:50
  Speaker 1: Preclude experts in testimony not properly and timely disclosed by
• 47:54
  Speaker 1: the state. Mr. Kohlberger requests that the state be prohibited...
• 47:58
  Speaker 1: from introducing expert testimony and underlying evidence that may not
• 48:02
  Speaker 1: be properly detailed in expert disclosure, for which the deadline
• 48:05
  Speaker 1: was January 9, 2025. Those specifics are detailed in the
• 48:10
  Speaker 1: accompanying motion for Lamine. 2. Require the state to provide
• 48:15
  Speaker 1: a Hot Document Index of information it intends to rely on,
• 48:18
  Speaker 1: as well as Brady-Gilio evidence in accordance with the minimum
• 48:21
  Speaker 1: standards for voluminous electronic discovery. Given the compounding prejudice of
• 48:27
  Speaker 1: late disclosure with the extreme amount of discovery that has
• 48:30
  Speaker 1: been provided in a format that does not meet the
• 48:32
  Speaker 1: minimum standards that courts have considered, Section 2 Supra, Mr.
• 48:37
  Speaker 1: Kohlberger respectfully requests that this court order the state to
• 48:41
  Speaker 1: provide within two weeks or the soonest this court deems
• 48:44
  Speaker 1: reasonable 1. Detailed index of discovery and evidence they intend
• 48:48
  Speaker 1: to rely on at either the merits phase or in
• 48:50
  Speaker 1: sentencing 2. A detailed index of Brady-Gilio documents and evidence
• 48:56
  Speaker 1: including potentially exculpatory or impeachment information. Given the amount of data,
• 49:01
  Speaker 1: the government cannot meet its Brady obligations by providing Mr.
• 49:04
  Speaker 1: Kohlberger with access to more than 68 terabytes of data
• 49:08
  Speaker 1: and then claiming that he should have been able to
• 49:11
  Speaker 1: find exculpatory information in the haystack. Both of these indexes
• 49:16
  Speaker 1: should have included location of the document in a way
• 49:19
  Speaker 1: that makes it easily identifiable by the defense. As discussed above,
• 49:25
  Speaker 1: evidence pointing to a possible alternate perpetrator or anything refuting
• 49:29
  Speaker 1: the state's theory is bedrock Brady evidence and should be included. Moreover,
• 49:34
  Speaker 1: if the proceeds a death penalty case, Brady's material must
• 49:38
  Speaker 1: include any evidence that would tend to mitigate punishment. Examples
• 49:42
  Speaker 1: of this evidence in a capital case include evidence that
• 49:45
  Speaker 1: is a capital defendant was a devoted and loving family member,
• 49:49
  Speaker 1: that he experienced trauma, neglect, isolation, or ostracization as a child,
• 49:53
  Speaker 1: young adult, or adult, that he excelled in his education,
• 49:57
  Speaker 1: that he experienced blows to the head or other potential
• 50:00
  Speaker 1: brain injuries, and that he experienced depression, anxiety, or other
• 50:04
  Speaker 1: symptoms of mental illness. that his symptoms began before he
• 50:08
  Speaker 1: was charged with capital murder, and or that he is
• 50:11
  Speaker 1: susceptible to pressure, manipulation, or exploitation. 3. Proclude the death
• 50:18
  Speaker 1: penalty as a potential sentencing option. Courts have also precluded
• 50:22
  Speaker 1: the prosecution from seeking the death penalty in would-be capital
• 50:26
  Speaker 1: cases when the prosecution fails to satisfy their pretrial discovery obligations.
• 50:31
  Speaker 1: As the First Circuit has noted, dismissal of the notice
• 50:34
  Speaker 1: to seek death penalty is is not an extreme dismissal
• 50:37
  Speaker 1: of an indictment, the government may still seek a conviction
• 50:41
  Speaker 1: and the serious penalty of life imprisonment. This less extreme
• 50:45
  Speaker 1: remedy is appropriate even in situations when the violation would
• 50:48
  Speaker 1: not amount to a sanction in a non-capital felony case.
• 50:53
  Speaker 1: We do believe that in a capital case, when the
• 50:55
  Speaker 1: stakes are so high, a smaller quantum of prejudice may
• 50:58
  Speaker 1: justify a sanction than in a regular murder case. And
• 51:02
  Speaker 1: as discussed above, striking the notice is not quite as
• 51:05
  Speaker 1: serious as dismissing the indictment altogether, and so perhaps still
• 51:09
  Speaker 1: less prejudice is required. Another Idaho trial court recently concluded
• 51:14
  Speaker 1: that precluding the death penalty was the only way to
• 51:17
  Speaker 1: cure the prejudice of disclosure violations by the state. In
• 51:21
  Speaker 1: Idaho v. Lori Vallow Daybell, the state had bait stamped
• 51:24
  Speaker 1: and previously provided more than 80,000 documents in discovery. However...
• 51:28
  Speaker 1: The prosecution failed to turn over approximately 5,000 pages of
• 51:32
  Speaker 1: discovery and 30 hours of audio files until a month
• 51:36
  Speaker 1: before trial. The court ruled from the bench and signed
• 51:39
  Speaker 1: an order. This is notably many, many multitudes less than
• 51:43
  Speaker 1: 68 terabytes of discovery turned over in this case. Though
• 51:47
  Speaker 1: the prosecution filed the discovery only one day after the
• 51:50
  Speaker 1: deadline set by the court, the defense argued that there
• 51:53
  Speaker 1: was insufficient time for counsel to review the significant discovery
• 51:57
  Speaker 1: in a meaningful manner. and complete any necessary follow-up prior
• 52:01
  Speaker 1: to the trial date one month later. The court agreed
• 52:04
  Speaker 1: and found that dismissal of the death penalty was appropriate
• 52:07
  Speaker 1: and ordered to mitigate the prejudice. The court specifically found
• 52:10
  Speaker 1: that the state had acted in good faith and attempted
• 52:12
  Speaker 1: to disclose all discovery, and that the remedy was not
• 52:15
  Speaker 1: in any way intended as a sanction for bad faith
• 52:18
  Speaker 1: or misconduct by prosecutors. However, the court specifically noted that
• 52:22
  Speaker 1: death is different, that heightened standards of reliability and unique
• 52:26
  Speaker 1: safeguards must apply in a death penalty case, and therefore
• 52:30
  Speaker 1: striking the death penalty was the only appropriate remedy. The
• 52:33
  Speaker 1: court has commented in other proceedings related to Mr. Kohlberger's
• 52:37
  Speaker 1: trial setting and motions about discovery and expert opinions that
• 52:41
  Speaker 1: Lori Vallow's case is distinguishable because she has not waived
• 52:45
  Speaker 1: her speedy trial rights. However, in this case, it is
• 52:48
  Speaker 1: the court that is repeatedly telling all counsel and Mr.
• 52:51
  Speaker 1: Kohlberger that the trial date is set in stone, and
• 52:54
  Speaker 1: everyone must be ready to proceed by July 30, 2025.
• 52:57
  Speaker 1: In another case, a federal district court precluded the government
• 53:02
  Speaker 1: from seeking the death penalty for two defendants after the
• 53:05
  Speaker 1: prosecution failed to turn over some of the statements made
• 53:08
  Speaker 1: by a witness for approximately one year after the defendants
• 53:11
  Speaker 1: had been arrested. The judge found that the defendant had
• 53:15
  Speaker 1: been prejudiced because the prosecutors repeated delays and failures to
• 53:18
  Speaker 1: provide timely and full disclosure hindered the defense's ability to
• 53:22
  Speaker 1: investigate the crime. Due to the fact that discovery was
• 53:26
  Speaker 1: not disclosed in a timely manner, the prosecutor's conduct easily
• 53:30
  Speaker 1: passed as threshold to bar the government from seeking the
• 53:33
  Speaker 1: death penalty, and preclusion of the death penalty was the
• 53:36
  Speaker 1: only viable remedy that protects the dignity of the process
• 53:39
  Speaker 1: and the rights of a death penalty eligible defendant. In
• 53:43
  Speaker 1: yet another case, the court declared a mistrial and precluded
• 53:46
  Speaker 1: the death penalty after discovering that the state did not
• 53:49
  Speaker 1: turn over all the notes from one of the investigating officers.
• 53:54
  Speaker 1: The judge specifically noted that the prosecution was aware of
• 53:57
  Speaker 1: the notes and had not acted willfully or in bad faith,
• 54:01
  Speaker 1: but that their regrettable and unintentional failure to fully comply
• 54:05
  Speaker 1: with the full discovery obligations had deprived the defendant of
• 54:09
  Speaker 1: his rights of due process, a fair trial, and effective
• 54:12
  Speaker 1: assistance of counsel. While a mistrial alone may have cured
• 54:16
  Speaker 1: the violation, the court ordered preclusion of the death penalty
• 54:20
  Speaker 1: in the retrial as an additional sanction. In a case
• 54:23
  Speaker 1: like this one where more than 68 terabytes of information
• 54:26
  Speaker 1: has been produced, the failure to direct the defense to
• 54:29
  Speaker 1: evidence and discovery it will use in support of expert
• 54:33
  Speaker 1: conclusions as required by the disclosure rules will result in
• 54:36
  Speaker 1: the same prejudice as if it was not turned over
• 54:39
  Speaker 1: at all. Several other judges have struck the death penalty
• 54:43
  Speaker 1: as a sentencing option in response to disclosure violations. See
• 54:47
  Speaker 1: State v. Montgomery, United States v. Rosada, United States v. Gomez-Almeida,
• 54:53
  Speaker 1: precluding the death penalty, where the prosecution failed to clarify
• 54:57
  Speaker 1: the nature of the meeting with the Department of Justice
• 54:59
  Speaker 1: regarding the case, coupled with the prosecution's flagrant and admitted
• 55:03
  Speaker 1: disregard of the court's discovery deadlines. Mr. Kohlberger has repeatedly
• 55:08
  Speaker 1: brought forth facts that demonstrate serious prejudice to his due
• 55:11
  Speaker 1: process rights. He has repeatedly raised the issue of the
• 55:14
  Speaker 1: chaotic and disorganized production of discovery. He has repeatedly compelled discovery,
• 55:19
  Speaker 1: regardless of whether it was purposeful or inadvertent, The prosecution
• 55:23
  Speaker 1: is shirked its responsibility to fulfill its constitutional obligations to
• 55:27
  Speaker 1: provide timely disclosure to the defense. As a result, the
• 55:31
  Speaker 1: defense's ability to investigate has been seriously impeded. Regardless of
• 55:36
  Speaker 1: whether the failure to organize the voluminous discovery into a
• 55:39
  Speaker 1: searchable and usable form identify potential exculpatory evidence and provide
• 55:44
  Speaker 1: minimally adequate expert disclosures on the timeline set by this
• 55:47
  Speaker 1: court is intentional or merely the result of inattention, the
• 55:51
  Speaker 1: prejudice is the same. Indeed, other courts have precluded the
• 55:55
  Speaker 1: death penalty on far less, and bad faith is not
• 55:57
  Speaker 1: the standard for applicability of sanctions. Striking the death penalty
• 56:04
  Speaker 1: is the only remedy that begins to adequately address the
• 56:06
  Speaker 1: prejudice to Mr. Kohlberger. Even with a hot documents list
• 56:10
  Speaker 1: and detailed expert disclosures, the minimum necessary for this case
• 56:14
  Speaker 1: to proceed to trial, counsel, is at a massive disadvantage
• 56:18
  Speaker 1: given the limited resources as compared to the state, and
• 56:21
  Speaker 1: the fact that only five months remain before trial, and
• 56:24
  Speaker 1: the tactical advantage that the state has gained because defense
• 56:27
  Speaker 1: complied with the court's disclosure deadline cannot be remedied after
• 56:30
  Speaker 1: the fact. Though counsel could proceed to a non-capital trial
• 56:34
  Speaker 1: by making strategic decisions about what to follow up on
• 56:37
  Speaker 1: in the limited time frame, counsel will not have the
• 56:40
  Speaker 1: time to complete the type of investigation that would be
• 56:42
  Speaker 1: necessary to meet the required heightened reliability standard in a
• 56:46
  Speaker 1: death penalty case in light of the late disclosures and
• 56:50
  Speaker 1: mountains of discovery. Precluding the death penalty is therefore necessary
• 56:54
  Speaker 1: to enforce Mr. Kohlberger's constitutional rights. This remedy will also
• 56:59
  Speaker 1: reduce the significant risk of seating a conviction-prone jury that
• 57:02
  Speaker 1: does not hold the prosecution to their burden of proof,
• 57:06
  Speaker 1: a fact that would make the states already gain strategic
• 57:09
  Speaker 1: and resource advantages. Though a risk will remain that the
• 57:13
  Speaker 1: extensive and prejudicial pretrial publicity will negatively impact the fairness
• 57:18
  Speaker 1: and accuracy of the jury's fact-finding, this risk will be
• 57:21
  Speaker 1: mitigated when it's not compounded by the process of death qualification,
• 57:25
  Speaker 1: a process that skews the jury towards conviction and death
• 57:28
  Speaker 1: during voir dire, before a single piece of evidence has
• 57:31
  Speaker 1: been presented. This document was dated February 24th of 2025,
• 57:36
  Speaker 1: and it was signed by Ann Taylor. If you'd like
• 57:39
  Speaker 1: to contact me, you can do that at bobbycapucci at protonmail.com.
• 57:42
  Speaker 1: That's B-O-B-B-Y-C-A-P-U-C-C-I at protonmail.com. Or if you prefer, you can
• 57:48
  Speaker 1: find me on X... at B-O-B-B-Y underscore C-A-P-U-C-C-I. All of
• 57:55
  Speaker 1: the links that we discuss can be found in the
• 57:57
  Speaker 1: description box.